On Wednesday, May 22, 2019, the Fourth District Court of Appeal in Venezia v. JP Morgan Acquisition Corp,  Case No. 4D18-1278, 44 Fla. L. Weekly D1329a (Fla. 4th DCA May 22, 2019), held that “as the case was voluntarily dismissed and there was no judicial determination that the parties were not parties to the contract the Borrower was entitled to fees.” 
 
​In reaching this holding, the Fourth District Court of Appeal cited to Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153, 1154 (Fla. 4th DCA 2018), which held that a “borrower who had raised lack of standing as an affirmative defense was entitled to prevailing party attorney's fees following the bank's voluntary dismissal.” The court in Elkind reasoned, that “[s]tanding was never litigated below and the trial court never made a finding that the bank or the borrower were not parties to the contract” and thus, “the borrower did not prevail on his argument that dismissal was required because the bank lacked standing to sue on the contract.”
 
As noted above, this case is distinguished from Glass, as this case did not involve a judicial determination that no contract existed between the parties.   This case is not yet final and subject to rehearing.

Questions?
Contact Marissa Yaker, Esq. here.

PLG litigation attorney Will Noriega, Esq. secures a per curiam affirmance (PCA) win in favor of foreclosing lender in Florida. See below for details on this recent PCA obtained on an appeal handled by Padgett Law Group. Though this result does not create any binding case law, it should serve as a basis of confidence when confronting the following issues within the trial court:

1. At trial, does Plaintiff have to prove that it has lien priority over ALL named interests as part of its prima facie foreclosure case and not just priority over those contesting; 
   1. No. The elements of a prima facie foreclosure that Plaintiff must prove are: (1) an agreement between the parties, (2) a default by the defendant, (3) acceleration of the debt to maturity, and (4) the amount due. In other words, the plaintiff must introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the outstanding debt. Only where there is an instance of a named interest contesting lien priority does Florida law hold that lien priority becomes part of plaintiff’s prima facie showing of entitlement to foreclosure.   
2. Whether failure to include an unnamed beneficiary of a trust when the subject deed transfers to only a trustee must result in dismissal for failing to name an indispensable party;
   1. No. Dismissal is not warranted for failing to include an unnamed beneficiary to a trust when the deed refers to the grantee as a “trustee” or “as trustee.” This type of deed is deemed to have transferred a fee simple estate to the grantee. See Heiskell v. Morris, 182 So.3d 714, 720 (Fla. 1st DCA 2015); Fla. Stat. 689.07(1).
3. Whether there is a presumption that the plaintiff has standing as holder of a negotiable instrument when a copy of the original note, attached to the complaint, differs from the original in that loan numbers have been redacted and “exhibit” stamps annexed.
   1. Yes, this presumption still exists despite nominal differences such as redactions to loan numbers (as required by Florida Rule of Judicial Administration 2.425(a)(4)(I)) and inclusion of “exhibit” stamps for identification purposes when attaching a copy of the note to the operative complaint. The Florida case law holding that the presumption does not exist occurs when there are substantial differences in the copy of the note attached to the complaint and the original later filed with the court, such as an indorsement that is not present on the copy.
   
   

Again, this PCA does not have any precedential value and cannot later be cited to for these propositions. However, it does indicate that Florida’s Second District Court of Appeal does not believe that the above scenarios should prevent the entry of a final judgment of foreclosure.

​Today, the Florida Supreme Court in Glass v. Nationstar, LLC, Case No. SC17-1387, recalled its mandate, and withdrew its opinion dated January 4, 2019.  
 
Accordingly,  the Fourth District Court of Appeal, Nationstar v. Glass, Case No. 4D15-4561,  opinion remains in effect, where the Fourth District Court of Appeal held that when a foreclosure case is dismissed for lack of standing, the borrower may not take advantage of the attorney fee provision of the mortgage to seek fees.

Questions?
Contact Marissa Yaker, Esq. here.

Seth J. Greenhill, Esq., a bankruptcy attorney in Padgett Law Group's Fort Lauderdale, FL office authored a feature article in industry publication DS News' April issue. The issue is currently on newsstands. In his article, Greenhill discusses a court of appeals ruling that could have implications for creditors in Chapter 13 bankruptcy cases. The issue at hand is defining the term "provided for." Click here to read Greenhill's article or contact Seth directly.